Wednesday, February 26, 2014

Sentencing of a Chinese
artifacts dealer and his company for obstruction of justice took place last week in the Southern District
of Florida. The U.S. Attorney in Miami commenced the prosecution when the defendants tried to thwart import restrictions authorized
by the Convention on Cultural Property Implementation
Act (CPIA).

In the cases ofU.S. v. Francois B. LorinandU.S. v. Lorin & Son, LLC,
federal district court judge Jose E. Martinezfined
Lorin & Son (doing business as Asiantiques) $25,000 plus an
assessment of $400. He also placed the company's manager, Francois Lorin, on
probation for a period of three years, imposing a special condition that
he "shall
provide complete access to financial information, including disclosure of
all business and personal finances, to the U.S. Probation Officer."

Today, the court issued a further order
forfeiting 22 Chinese objects seized from the defendants in 2011. The
forfeiture is part of theplea
agreementreached between
the parties this past December.

Prosecutors say that the defendants supplied fake paperwork to U.S. Customs and
Border Protection (CBP) in an effort to convince authorities that the Chinese
artifacts arrived in the U.S. prior to the enactment of a bilateral agreement
between the U.S. and China. That bilateral agreement, also known an MoU, was
adopted in 2009 under authority of the CPIA. It restricts imports of
designated archaeological materials from China unless specifically authorized. Import restrictions enacted under the U.S.-China MoU were renewed by the President last month.If the defendants could show that the
archaeological objects to be imported were located in the U.S. prior to January
14, 2009—the enactment date of the U.S.-China MoU—then the archaeological
objects could be re-imported with little difficulty. So when the defendants offered fraudulently backdated customs paperwork
to prove that the goods were in the U.S. as early as May 9, 2006,Miami's top federal prosecutor charged the defendants with
obstruction under 18 U.S.C. § 1512(c)(2). The U.S. Attorney's office further alleged to the court that the defendants declared false values for the imports and failed to declare some others. Fuller details of the facts can be foundhereandhere. When sentencing Francois Lorin, Judge Martinez agreed to depart downward from
the federal sentencing guidelines, a move supported by both the government and the
defense. That is to say that the court agreed with the parties' recommendation that a term of probation could be imposed on the 75 year old defendant without
sending him to prison.

Today's court order describes the objects forfeited to
the government as part of the plea deal reached with the government:

Nephrite Jade “Bi” Disk composed
of Three “Huang” from theNeolithic
or Shang Dynasty.

Nephrite jade “Bi” disk composed
of three Huang fromthe late
Shang or Western Zhou Dynasty.

Pan Bronze Footed Tray with Two
handles from theArchaic-Zhou
Dynasty, first millennium BC.

Nephrite Jade Insignia Blade from
the Late Neolithic Period.

Lion and Grapevine mirror with
elaborate wood.

Nephrite Jade “Bi” Disk from the
Han Dynasty.

Nephrite Jade “Bi” Disk from the
Han Dynasty.

Three-part Nephrite Jade “Bi” Disk
from the ShangDynasty.

Gold and Silver Inlaid Bronze
Cylindrical Lidded Container from the Late Zhou Dynasty.

Tuesday, February 25, 2014

Chicago-Kent College of Law won this past weekend's National Cultural Heritage Law Moot Court Competition held at the Dirksen federal courthouse in Chicago. The annual competition is sponsored by the Lawyers' Committee for Cultural Heritage Preservation and DePaul University College of Law.

This year's moot court problem addressed legal topics surrounding
the Convention on Cultural Property Implementation Act, the law that implements
the 1970 UNESCO Convention on the
Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of
Ownership of Cultural Property. Twenty teams from across the country submitted
briefs.

Judges for the moot court finals hailed from two
federal circuit courts of appeal and two Illinois state courts. They crowned
Kelly O'Neill, Hannah Tuber, and Paulina Lopez the moot court champions. Lopez
also won the award for best oralist.

Law
professor and Cultural Property Advisory Committee ChairPatty Gerstenblithorganized the competition, now in its fifth
year. Contributing to the success of the program, which serves to educate
law students about the nuances of cultural heritage law, were Lubna El-Gendi
and eighty-four legal professionals who served as competition judges and brief
graders.

CHL was honored to judge the quarter-final and semi-final rounds, which were
skillfully argued by the law student contenders.

This post is researched, written, and published on the blog Cultural Heritage Lawyer Rick St. Hilaire at culturalheritagelawyer.blogspot.com. Text copyrighted 2010-2014 by Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC. Any unauthorized reproduction or retransmission of this post is prohibited. CONTACT INFORMATION: www.culturalheritagelawyer.com

Thursday, February 13, 2014

Fresh images from Egypt continue to document the destruction and looting of cultural heritage.

Dr.
Monica Hanna, in a video recently posted by Saving Antiquities for Everyone, shows active plundering taking place at Dashur near the ancient pyramid sites. She also spotlights the damage caused to
a network of Coptic Christian churches attacked by looters. See the video here.

Christian Manhart, Head of the Museum Section at UNESCO Paris,
meanwhile, has provided CHL with the accompanying photos that capture the damage caused to the
Islamic Museum of Art in Cairo, a result of last month's explosive blast from a nearby truck bomb.That attack prompted the
Archaeological Institute of America and several other cultural heritage
organizations to issue astatementlast
week expressing dismay about the loss of human lives and the threat to heritage in Egypt.

Manhart partnered with Dr. Regine Schulz, a specialist in Islamic and
Egyptian museum collections, and restoration architect Riccardo Giordano to
form a joint UNESCO, International Council of Museums, and Blue Shield
Emergency Mission team. Along with local heritage authorities and professionals in Cairo, the group members toured the
building on Port Said Street in Cairo two weeks ago that houses both the art museum and the
Archive Museum of the National Library at Bab el Khalq. The archive holds collections of precious manuscripts, coins, and
scientific instruments.

Manhart and his team witnessed the damage
first-hand and report both good news and bad news to CHL:

In spite of the shocking first aspect of destruction inside and
outside, the mission was pleased to record that the structural stability of the
building seems not endangered. However, serious damage was recorded to the
coating of the outside façade and almost all exhibition halls of both
institutions, as well as to the skylights of the roof.

First emergency work is required to cover the roof and the
windows, in order to make the building waterproof to avoid further damage in case of rainfall. It is also urgent to check and remove [the] loose decoration
panels on the top of the facade, which could fall down and injure people
walking in the street in front of the building.

In the Islamic Museum, all showcases and
display facilities have been destroyed. 161 objects have been either totally
destroyed or so seriously damaged that their restoration will require many
years and substantial funding. In particular the precious glass collection,
including 9 important lamps from Mosques of which some go back to [the] 9thcentury has been reduced to rubble,
which is being collected and sorted by the staff of the museum, even if at the
moment there is no method to restore them.

Also the ceramic objects have been
strongly damaged. The wood objects collection, in particular two unique carved
old Mihrabs are already under restoration. The metal collections are only
slightly damaged, and can be restored rather quickly by the museum’s staff.

Fortunately, the conservation laboratories and store-rooms which are mostly in
the underground or on the backside of the building are not or only very
slightly damaged, they can now entirely be used to safe keep and restore the
collections.

As for the Archive Museum of the National
Library at Bab el Khalq, all showcases are smashed, however only [a] few
manuscripts and books are damaged, mainly by water from the broken water supply
and from glass dust. Most of this damage can be rather easily cleaned and
restored, but also this will take many months of work.

Photos: Copyright C. Manhart UNESCO. Used with permission.This post is researched, written, and published on the blog Cultural Heritage Lawyer Rick St. Hilaire at culturalheritagelawyer.blogspot.com. Text copyrighted 2010-2014 by Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC. Any unauthorized reproduction or retransmission of this post is prohibited. CONTACT INFORMATION: www.culturalheritagelawyer.com

Friday, February 7, 2014

Several cultural heritage organizations issued a joint statement today regarding the loss of life and threat to heritage caused by an explosion that rocked the Museum of Islamic Arts in Cairo, Egypt. The statement reads:

The undersigned
cultural heritage and archaeological organizations express their dismay over
the injuries and loss of life from the January 24, 2014 truck bombing in Cairo
and resulting damage to the Museum of Islamic Arts, The Egyptian National
Library and Archives, and other historic buildings in the immediate area.

We support the desire
of the Egyptian people to exercise their basic civil rights. We also share
their concern about the losses to cultural heritage that Egypt has already
sustained and the threat of further such losses.

We call on the
Egyptian authorities and all other parties to exercise their responsibilities
to protect their country’s irreplaceable cultural heritage. At the same time,
we urge international organizations to help to assess the damage caused and to
support conservation and preservation efforts.

The organizations signing on to the statement include the American Anthropological Association, the American Schools of Oriental Research, the Archaeological Institute of America, the Collaborative for Cultural Heritage Management and Policy, the U.S. Committee of the Blue Shield, and The Lawyers' Committee for Cultural Heritage Preservation.

This post is researched, written, and published on the blog Cultural Heritage Lawyer Rick St. Hilaire at culturalheritagelawyer.blogspot.com. Text copyrighted 2010-2014 by Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC. Any unauthorized reproduction or retransmission of this post is prohibited. CONTACT INFORMATION: www.culturalheritagelawyer.com

The AAM advocates on behalf of thousands of museums across the country. It accredits hundreds
of cultural institutions. The AAMD, meanwhile, is a leading cultural organization whose mission is to support art museum
directors accepted for membership.

The Meyer lawsuit claims that AAM and AAMD share legal liability for the University
of Oklahoma’s purportedly wrongful acceptance of a Camille Pissarro painting entitled “La bergère
rentrant des moutons.” The artwork is alleged to have been taken by the Nazis
during World War II, imported into the U.S. in 1956, and then bequeathed to the
University of Oklahoma in 2000. “La Bergère” remains on permanent display at
the Fred Jones, Jr. Museum of Art on the University of Oklahoma campus.

Meanwhile, in another case, a federal district judge in Virginia on January 17 ruled against a nonprofit college organization
that revoked a school’s accreditation. The defendants in the case of Professional
Massage Training Center, Inc. v. Accreditation Alliance of Career Schools and
Colleges (AACSC) immediately
appealed the unusual decision to the Fourth Circuit. The AACSC court articulated the general rule that “great deference” is to be afforded an accrediting institution's decision. Nevertheless, the federal district judge ordered AACSC to pay damages after determining that the organization acted in an “arbitrary and unreasonable” fashion when revoking the accreditation of the Professional Massage Training Center. Damages of roughly $429,000 were ordered.

Meyer and AACSC both raise issues of what liability accrediting organizations may potentially face.

In
the “La Bergère” case, Plaintiff Léone Meyer now argues in an amended complaint that the AAM and AAMD broke their accrediting and membership
agreements with the The Fred Jones Museum, causing the plaintiff to suffer harm. Meyer's attorney characterizes the plaintiff as an intended
beneficiary of both the accrediting and membership “contracts,” arguing that
she was denied their expected benefits because AAM
and AAMD did nothing after The Fred Jones Museum failed to follow the organizations' provenance
investigation guidelines when the museum performed background checks
on “La Bergère.” The amended complaint declares:

AAM
failed to hold Fred Jones Museum to the high standards required in order to
become accredited when AAM either issued or renewed Fred Jones Museum’s
accreditation without any regards to its adherence to the Unlawful
Appropriation Standards.

These contract claims undoubtedly will be challenged by lawyers for AAM and AAMD.

Among the questions posed at the outset might be whether the defendants’ published guidelines actually mandate obligations on museums. The difference, of course, between what a museum must do versus what it should do is the difference between a potentially enforceable obligation and a hopeful suggestion. In the Meyers case, plaintiff's counsel writes that the defendants are “bound,” a term that implies some duty. But the amended complaint simply articulates that museums are bound by “guidelines,” which are usually understood as aspirational calls to action rather than mandatory obligations.

Another
question posed might be whether the contracting parties actually intended to have a
third party benefit substantially from the accreditation and membership
contracts. Generally speaking, a third party beneficiary may enforce a contract
even though he or she is not a direct party so long as the third party is an intended beneficiary rather than an incidental beneficiary.Was Plaintiff Léone Meyer an intended beneficiary of AAM's membership
contract or AAMD's accreditation contract—assuming they were even contracts? Courts across the country typically look to the language contained in a contract as well as to the circumstances that formed the contract in order to determine
if there was an intention to directly benefit a third party.

So
while issues of liability are raised by the new lawsuit against AAM and AAMD for allegedly failing to act against one of its members, the Accreditation Alliance of Career Schools and Colleges (AACSC) has been sanctioned
for the opposite, namely revoking the accreditation of one of its members.

Given
the two lawsuits, accrediting and membership organizations in the
cultural property realm must be wondering exactly what their legal responsibilities and risks are.

Photo credit: Peter Skadberg

This
post is researched, written, and published on the blog Cultural Heritage Lawyer
Rick St. Hilaire at culturalheritagelawyer.blogspot.com. Text copyrighted 2010-2014
by Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC. Any
unauthorized reproduction or retransmission of this post is prohibited.
CONTACT INFORMATION: www.culturalheritagelawyer.com

2015 ABA Journal Blawg 100 Honoree

2014 ABA Journal Blawg 100 Honoree

2014 Daniel Webster International Lawyer of the Year award given to Rick St. Hilaire

"Rick St. Hilaire, who has become an authority on cultural heritage law, received the International Law Section’s 2014 Daniel Webster International Lawyer of the Year award at an Oct. 30 reception in Manchester, hosted by Sheehan Phinney Bass + Green." - NH Bar News, November 19, 2014

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